The Consequences of an Insured’s Failure to Attend Insurer’s Examinations. By Aryeh Samuel and Jonathan Beiles

By Aryeh Samuel Aug 31, 2020

Introduction

Adjudicator Jesse Boyce makes clear in the recent LAT Preliminary Issue Decision, R.S. vs. Pafco Insurance Company, that insureds seeking a catastrophic impairment (“CAT”) determination will not be permitted to avoid attending Insurer’s Examination (“IE”) deemed to be reasonably necessary.

Background

In Pafco, The applicant sought various benefits including IRBs from his insurer, Pafco, and also sought a CAT determination. The applicant underwent assessments of his own in preparing his application for CAT determination, which he submitted to Pacfco. Included in the applicant’s submission was a neurology report, in which the assessor opined that “the applicant likely had a mild traumatic brain injury.” This prompted Pafco to request the applicant attend a neuropsychological IE. The applicant refused, claiming the neuropsychological IE was not reasonably necessary because his assessors had found no neuropsychological basis for his impairments.

Per section 44 of the Statutory Accident Benefits Schedule, insurers have the right to conduct IEs that are considered “reasonably necessary.” Therefore, at issue was whether the neuropsychological IE was reasonably necessary.

Is a S.44 IE Neuropsychological IE Reasonably Necessary?

Other than having to attend one more IE, the applicant failed to demonstrate compelling evidence of actual prejudice if he were required to attend the neuropsychological assessment. Adjudicator Boyce acknowledged the importance of the applicant’s privacy rights and concerns. Nevertheless, Adjudicator Boyce opined that such a concern for privacy rights “does not make any IE that an applicant disagrees with presumptively unreasonable or unnecessary”.

Moreover, Adj Boyce rejected the applicant’s argument that the neuropsychological IE was not reasonably necessary because the applicant’s own assessors found no neuropsychological basis for his impairments. The applicant’s cognitive related-complaints and his own assessor’s opinion that he likely sustained a mild traumatic brain injury were sufficient to support a reasonable connection between the neuropsychological IE and the CAT determination.

Upon finding the IE to be reasonably necessary, Adjudicator Boyce held that the applicant was statue-barred from proceeding with his CAT determination until he attended the neuropsychological IE.

Takeaway

The Pafco decision suggests it is not an infringement of an insured’s privacy rights to require attendance at a neuropsychological IE where there is a credible medical opinion of a sustained brain injury and cognitive related-complaints.

Moreover, the broader implications of Pafco is that insureds have now been put on notice they risk having their claims for CAT determination statute-barred for failure to attend IE’s which are reasonable and necessary. The LAT will not permit insureds to avoid attending Insurer’s IE’s by advancing unsubstantiated allegations of privacy rights violations. The fact that an insured “disagrees” with an IE does not lead to the presumption that such an IE is unreasonable or necessary. If that were the case, an insurer would never be permitted to conduct an IE examination, thereby rendering s. 44 of the Schedule void.

Aryeh Samuel was the lawyer on this decision and author of this blog. If you have any questions about this decision or a similar file, please contact Aryeh at 416-777-7387

 

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